EMMONS, WARDEN v. BRYANT 10-12-2021 Substitute Opinion Issued. ( 2021 )

In the Supreme Court of Georgia
Decided: October 5, 2021
S21A0532. EMMONS, Warden v. BRYANT.
LAGRUA, Justice.
This appeal arises from the grant of a petition for habeas
corpus filed by Steven Bryant in connection with his 2015 conviction
for aggravated sexual battery. In granting Bryant’s petition, the
habeas court ruled that Bryant’s appellate counsel had rendered
ineffective assistance by failing to properly assert several instances
of trial counsel ineffectiveness, failing to properly present certain
claims of trial court error, and failing to pursue relief for the
violation of Bryant’s right to conflict-free counsel under Garland v.
State, 283 Ga. 201 (657 SE2d 842) (2008). The Warden contends
that the habeas court erred, both in its substantive rulings and by
granting relief on grounds not asserted by Bryant. We agree with
the Warden that the habeas court erred in its rulings. Accordingly,
we reverse.
1. The facts and procedural history relevant to our
consideration of this appeal are as follows.
(a) Indictment and Trial.
In April 2015, Bryant was indicted on one count of aggravated
sexual battery. The indictment charged that, in February 2015,
Bryant intentionally penetrated the victim’s vagina with his fingers
without her consent. Also charged in the indictment was Kimberly
Bridges, Bryant’s girlfriend at the time, who later pled guilty to a
lesser charge and testified at trial for the State.
The victim, Shirley Hudgins, died before trial. Without
Hudgins’ testimony, the State’s case rested largely on the testimony
of Bridges. Bridges testified that on the night of the incident, she
and Bryant, who were staying at Hudgins’ home at the time, had
gotten high; that Bryant suggested waking Hudgins to participate
in a sexual tryst but Bridges rejected the idea; and that, later, she
saw Bryant commit the battery on Hudgins. Bridges also testified
that Bryant texted Hudgins afterwards to apologize.
2
The State also presented the testimony of three other
witnesses who were in contact with Hudgins in the aftermath of the
incident. Tina Gentry, a sexual assault nurse who examined
Hudgins less than 24 hours after the incident, testified that in the
course of her examination she observed a small abrasion in Hudgins’
vaginal area, which was consistent with Hudgins’ description of how
she had been penetrated. Gentry also testified that Hudgins
described receiving text messages from Bryant after the incident,
asking Hudgins to “just let this go and forget about it.” The other
two witnesses — Hudgins’ boyfriend, Jimmy Ray Hunter, and her
close friend, Krista Barker — testified that Hudgins told them on
the morning after the incident that she had awakened to find Bryant
breathing heavily in her ear and with his fingers in her vagina; both
testified that she was extremely distraught.
Bryant testified in his own defense, denying having touched
Hudgins and claiming that he had only been attempting to ask her
where he could find a light for his cigarette. Bryant presented no
other evidence. The jury found Bryant guilty, and he was thereafter
3
sentenced as a recidivist to life in prison without the possibility of
parole.1
(b) Post-Trial Proceedings and Appeal.
Through his appointed trial counsel, James Wyatt, Bryant filed
a motion for new trial. While the motion for new trial was pending,
Bryant filed a pro se motion to remove Wyatt, alleging he had
rendered ineffective assistance. Seven days later, Bryant filed a pro
se “amendment” to his pro se motion, indicating his desire to
continue with Wyatt’s representation. The motion for new trial was
ultimately denied,2 and, through Wyatt, Bryant appealed.
While the appeal was pending, Bryant filed various pro se
motions in the trial court requesting the substitution of counsel,
again alleging ineffective assistance and a conflict of interest. In
light of these filings, Wyatt filed a motion on Bryant’s behalf in the
Court of Appeals, seeking a remand of the appeal. Wyatt also filed
1Bryant’s prior felony convictions included those for obstruction of a law
enforcement officer, first-degree forgery, and second-degree burglary.
2 From the record before us, which appears to include only selected
portions of the trial court record, it does not appear that the trial court ever
ruled on either the motion to remove Wyatt or the amendment.
4
Bryant’s appellate brief, asserting trial court error in various
respects. Subsequently, the motion to remand was granted, and the
case was remanded to the trial court with direction to appoint new
appellate counsel and to conduct “appropriate proceedings
concerning the issue of ineffective assistance.”
On remand, new appellate counsel, Juwayn Haddad, was
appointed. Haddad filed a second motion for new trial on Bryant’s
behalf, asserting both trial court error and ineffective assistance
claims. At the hearing on the motion, after the court reviewed the
history of the case, Haddad notified the court that he had not been
aware until then that any prior post-trial proceedings had taken
place. Presuming that any claims of trial court error had already
been addressed, Haddad then proceeded only on the ineffectiveness
claims, questioning Wyatt about his trial strategy in two respects.
First, Haddad asked why Wyatt did not object to the testimony from
Bridges and Gentry about Bryant’s apologetic text messages to
Hudgins, given that the original text messages were never admitted
in evidence. Wyatt responded that he “probably didn’t think to
5
object” to them and there was no strategic reason he did not. Second,
Haddad asked about why Wyatt did not cross-examine Bridges
regarding her plea deal. Wyatt testified that he did not do so
because “I was of the opinion she received quite a harsh sentence for
her part in this case . . . . I think she had some probation revoked
and — got some time for it, and her involvement was fairly minor,
was my opinion.” Following the hearing, the second motion for new
trial was denied.
Bryant’s appeal was transmitted back to the Court of Appeals,3
and Haddad filed a second appellate brief, raising enumerations
both as to trial court error and Wyatt’s ineffectiveness. Rejecting
these contentions, the Court of Appeals affirmed in an unpublished
opinion. See Bryant v. State, Case No. A18A0342 (decided June 12,
2018). After concluding that the trial court had not abused its
discretion in admitting Hudgins’ hearsay statements through
3 Though Bryant filed a second notice of appeal following the denial of
the second motion for new trial, the Court of Appeals dismissed that appeal as
duplicative given the re-docketing of the initial appeal after the trial court’s
ruling on remand.
6
Barker and Gentry, the Court of Appeals rejected Bryant’s two
claims of trial counsel ineffectiveness. First, as to Wyatt’s failure to
assert a “best evidence” objection4 to the testimony about the
apologetic text messages, the Court of Appeals held that Bryant had
demonstrated no prejudice. See id., slip op. at 11-13 (2) (a).
Specifically, the Court of Appeals held that Bryant had not
demonstrated that the testimony regarding the text messages would
not have been admissible under OCGA § 24-10-1004 (providing that
original writings are not required if they are lost, destroyed, or
otherwise unattainable). As to Bridges’ plea deal, the Court of
Appeals noted that Bryant had presented no evidence of the terms
of the plea agreement, including the sentence Bridges received and
whether the agreement required her to testify against Bryant. See
Bryant, slip op. at 13-14 (2) (b). In addition, the Court of Appeals
concluded that Wyatt’s tactical decision not to probe Bridges on this
topic — because he believed she had received a harsh sentence given
4 See OCGA § 24-10-1002 (“To prove the contents of a writing . . . the
original writing shall be required.”).
7
her level of involvement — was not patently unreasonable. See id.
at 14 (2) (b).
(c) Habeas Proceedings.
Bryant filed a pro se petition for habeas corpus, which he later
amended, asserting a litany of alleged trial and appellate errors and
other claims, including due process violations, prosecutorial
misconduct, and ineffective assistance of trial and appellate counsel.
At the subsequent habeas hearing, both Haddad and Wyatt testified
about their involvement in Bryant’s case.
Upon questioning by the Warden’s counsel, Haddad testified
that he has practiced criminal defense since 1993 and, at the time
he was appointed to represent Bryant, had handled more than 150
jury trials and 80 appeals. Haddad testified that he believed he was
sufficiently prepared for the motion for new trial hearing and would
have sought a continuance had he believed it was necessary. In
pursuing Bryant’s appeal, Haddad testified that he conferred with
Bryant and reviewed Wyatt’s initial appellate brief, Wyatt’s trial
file, and the trial transcript. As to which arguments to assert,
8
Haddad testified that he decided to raise the two ineffectiveness
claims he believed were the strongest, stated that his practice on
appeal was to raise only what he believed were the most viable
issues, and explained his reasoning for not raising certain claims of
trial error. Specifically, he explained that he had not challenged the
trial court’s refusal to give a jury instruction on the lesser included
offense of sexual battery because he believed Bryant’s denial of any
contact with Hudgins precluded his entitlement to such an
instruction; that he had not challenged Bryant’s life-without-parole
sentence because he believed the recidivist statute compelled that
result; and that he had not raised insufficiency of the evidence
because he did not believe it was a viable argument. He also
testified that he believed he was procedurally barred from raising
trial errors that had not already been raised in the initial appellate
brief filed by Wyatt.
Bryant, who appeared at the hearing pro se, questioned
Haddad only about what documents he had received from Wyatt and
why he had not raised insufficiency of the evidence. Haddad
9
reiterated that, in light of Bridges’ and Gentry’s testimony, he
“didn’t think sufficiency was a valid argument to raise,” noting also
that, because this argument was not raised in the initial appellate
brief, he believed he was barred from raising it.
Bryant questioned Wyatt at much greater length. Bryant
asked whether Wyatt had obtained audio recordings of statements
made to an investigating officer by Hudgins and her nephew, Jason
Kilgore, who had been in the room at the time of the incident; Wyatt
responded that he had not and did not know whether such
recordings existed. With regard to Bridges’ plea deal, Wyatt
testified that he knew as of the time of Bryant’s trial that the plea
agreement provided for a probated sentence and required Bridges to
testify at Bryant’s trial. When asked why he had not cross-examined
Bridges regarding the plea deal, Wyatt replied that, because
Bridges’ involvement in the incident was minimal, he “decided not
to beat her up on that point.”
Among the evidence admitted at the hearing was Bridges’ plea
hearing transcript, which reflects that Bridges pled guilty to
10
aggravated assault and was sentenced to a two-year probated term,
consecutive to a three-year sentence she was serving at the time of
her plea on a probation revocation.5 The sentence was expressly
conditioned on Bridges’ testimony at Bryant’s trial. The habeas
record also includes the transcript from Bryant’s preliminary
hearing, at which the investigating officer, Ginger Ramey, testified
that her interview with Hudgins had been recorded. Also included
in the habeas record are the discovery materials that were provided
to Wyatt by the State. No recordings of an interview with Hudgins
or Kilgore are contained in the record before this Court.
Following the hearing, the habeas court issued a lengthy order,
ruling that Haddad rendered ineffective assistance in a variety of
ways in his handling of Bryant’s appeal.6 First, the court held that
Haddad had failed to properly investigate Bryant’s case. As a result,
5 The habeas court found that as a result of the guilty plea, Bridges was
“immediately released from jail.” There is no evidence to support this finding.
6 None of Bryant’s claims was raised specifically as a claim of ineffective
assistance of appellate counsel, although he argued generally that “both [of his]
attorneys” were ineffective. Additionally, the habeas court granted relief on
several issues that Bryant did not raise. Nevertheless, even if all of these
claims had been properly raised, we identify no merit to them.
11
the court found, Haddad failed to identify and develop six particular
claims of trial counsel ineffectiveness, including Wyatt’s failure to
conduct an adequate pretrial investigation, adequately cross-
examine Bridges, develop evidence regarding Bridges’ plea deal,
object to Gentry’s testimony, object to the text-message testimony,
and adequately challenge the admission of Hudgins’ hearsay
statements. As to some of these subjects, the habeas court also ruled
that Haddad had failed to properly present claims of trial error.
Finally, the court ruled that Haddad rendered ineffective assistance
by failing to assert a claim under Garland v. State that Bryant was
denied his right to conflict-free counsel after he began alleging
ineffectiveness of trial counsel during the pendency of the appeal.
See Garland, 283 Ga. at 205 (indigent defendants are
constitutionally entitled to the appointment of conflict-free counsel
on appeal). Concluding that the cumulative effect of these various
deficiencies by appellate counsel was prejudicial, the habeas court
concluded that Bryant was entitled to a new trial. This appeal
followed.
12
2. On review of the disposition of a habeas petition, this Court
adopts the habeas court’s findings of fact unless they are clearly
erroneous, but applies the law to those facts de novo. See Gramiak
v. Beasley, 304 Ga. 512, 513 (820 SE2d 50) (2018). Thus, where
habeas relief is premised on ineffective assistance, we conduct a de
novo review of “whether counsel’s performance was deficient and
whether any purported deficiency was prejudicial.” Johnson v.
Williams, 308 Ga. 791, 794 (2) (843 SE2d 550) (2020). See also
Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80
LE2d 674) (1984) (ineffective assistance of counsel is established by
a showing that counsel’s performance was deficient and the deficient
performance prejudiced the defendant).
To establish ineffective assistance of appellate counsel, “the
petitioner bears the burden of showing that appellate counsel was
deficient in failing to raise an issue on appeal and that the deficiency
prejudiced the defense.” Humphrey v. Lewis, 291 Ga. 202, 210 (IV)
(728 SE2d 603) (2012) (citation and punctuation omitted), overruled
on other grounds by State v. Lane, 308 Ga. 10 (838 SE2d 808) (2020).
13
See also Strickland, 466 U. S. at 687 (III). Deficient performance is
shown by demonstrating that counsel discharged his responsibilities
in an “objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.”
Thomas v. State, 303 Ga. 700, 702 (2) (814 SE2d 692) (2018) (citation
and punctuation omitted). In assessing counsel’s performance, we
apply a strong presumption that counsel “rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Head v. Ferrell, 274 Ga. 399,
404 (V) (554 SE2d 155) (2001) (citation and punctuation omitted).
“Appellate counsel does not render deficient performance by
selecting stronger claims for presentation on direct appeal while
setting aside weaker ones.” Id.Ordinarily, to show prejudice, a defendant must demonstrate
“a reasonable probability[,] sufficient to undermine confidence in the
outcome[,] that, but for counsel’s alleged unprofessional errors, the
result of the proceeding would have been different.” Miller v. State,
285 Ga. 285, 286 (676 SE2d 173) (2009) (citation and punctuation
14
omitted). As related to the performance of appellate counsel, a
determination of prejudice requires the finding of a reasonable
probability that, absent the effect of appellate counsel’s deficiencies,
the result of the appeal would have been different. See Gramiak,
304 Ga. at 513 (I). Thus, where ineffectiveness of appellate counsel
is premised on the failure to assert ineffectiveness of trial counsel,
demonstrating that the outcome of the appeal would have been
different necessarily requires establishing trial counsel’s
ineffectiveness. See id. (“[I]f [the defendant] cannot show his trial
counsel provided ineffective assistance of counsel, then [he] also
cannot show ineffective assistance of appellate counsel, because an
attorney is not deficient for failing to raise a meritless issue on
appeal.”).
We begin by noting that the habeas court granted relief to
Bryant on numerous grounds, and the Warden argues on appeal
that relief on all those grounds was improper. Bryant’s habeas
petition substantively addresses only two of the habeas court’s eight
ineffectiveness rulings, namely, those regarding the Garland claim
15
and Wyatt’s approach to Bridges’ plea deal.7 We will address the
merits of all of the habeas court’s bases for relief, beginning with the
two issues argued by both parties.
(a) With regard to the first issue, the habeas court concluded
that Haddad was ineffective by failing to assert a claim under
Garland that Bryant was denied his right to conflict-free counsel on
appeal after he began alleging ineffectiveness of trial counsel.
Specifically, the court held that Bryant’s rights under Garland were
violated to the extent Wyatt continued representing him on the first
motion for new trial and in the pre-remand appeal, and that Haddad
should have raised this claim on appeal. We disagree that Bryant’s
rights under Garland were violated, and we therefore disagree with
the conclusion that Haddad was ineffective in failing to assert this
issue on appeal.
In Garland, this Court held that a convicted defendant is
“constitutionally entitled to the appointment of conflict-free counsel
7In his brief, Bryant maintains that all of the habeas court’s findings
were proper but notes that, because of “space constraints,” his focus is on these
“two major aspects” of the habeas court’s decision.
16
to represent him on appeal.” Garland, 283 Ga. at 205. As we later
explained,
[a] criminal defendant in Georgia is constitutionally
entitled to the effective assistance of counsel during his
trial, motion for new trial proceeding, and direct appeal.
One component of the right to the effective assistance of
counsel is the right to representation that is free of actual
conflicts of interest.
Hall v. Jackson, 310 Ga. 714, 720 (2) (a) (854 SE2d 539) (2021)
(citations and punctuation omitted). Accord Williams v. Moody, 287
Ga. 665, 667 (2) (697 SE2d 199) (2010). Where a defendant desires
to assert claims of ineffective assistance against his trial counsel,
the right to conflict-free counsel is implicated because “trial counsel
[cannot] reasonably be expected to assert or argue his own
ineffectiveness on appeal.” Garland, 283 Ga. at 203.
For an appellant to carry his burden on a claim that he was
denied conflict-free counsel, he must show that
an actual conflict of interest significantly and adversely
affected [counsel’s] representation of [him]. [He] need not
show actual prejudice, that is, a reasonable probability
that the outcome of his motion for new trial or direct
appeal would have been more favorable to him if [counsel]
had not labored under a conflict of interest. Instead,
17
prejudice is presumed if [the appellant] demonstrates
that the conflict of interest existed and that it
significantly affected [counsel’s] performance.
Jackson, 310 Ga. at 720 (2) (a) (citations and punctuation omitted).
In making this determination,
[t]he critical question is whether the conflict significantly
affected the representation, not whether it affected the
outcome of the underlying proceedings. That is precisely
the difference between ineffective assistance of counsel
claims generally, where prejudice must be shown under
the two-part test set forth in [Strickland], and ineffective
assistance of counsel claims involving actual conflicts of
interest, which require only a showing of a significant
effect on the representation.
Id. (citation and punctuation omitted; emphasis in original). Thus,
there can be no Sixth Amendment violation where there is no actual
conflict of interest. See id. (actual conflict of interest existed where
appellate counsel admitted he failed to raise viable ineffectiveness
claims against trial counsel, who was his direct supervisor); see also
Edwards v. Lewis, 283 Ga. 345, 350-351 (2) (658 SE2d 116) (2008)
(actual conflict existed where trial and appellate counsel were both
instructed by superiors not to raise what they believed was a valid
challenge to the jury array due to alleged agreement between public
18
defender’s office and superior court judges).
Here, the habeas court appears to have determined that an
actual conflict of interest arose once Bryant began asserting his trial
counsel ineffectiveness claims pro se and seeking the appointment
of new counsel. Further, it determined that this conflict infected not
just the proceedings during the time that Wyatt remained in his role
as appellate counsel, but rather the entirety of the appeal
proceedings, even after Haddad was appointed. We disagree with
these determinations.
As an initial matter, Bryant’s pro se filings asserting that
Wyatt rendered ineffective assistance, submitted while Bryant was
still represented by Wyatt, were “‘unauthorized and without effect.’”
Williams, 287 Ga. at 669 (2). See White v. State, 302 Ga. 315, 319
(2) (806 SE2d 489) (2017) (pro se filings made while litigant is
represented by counsel are legal nullities). These filings alone thus
could not create an actual conflict of interest. See Williams, 287 Ga.
at 668-669 (2) (reversing finding of an actual conflict based solely on
counsel’s failure to withdraw when defendant filed invalid pro se
19
motion to assert ineffectiveness claims).8 Instead, Bryant’s
assertions of ineffectiveness were, at most, indicative of a potential
conflict of interest.
“The potential for a conflict of interest . . . ripens into an actual
conflict only when the conflict significantly and adversely affects the
appellate lawyer’s representation of the defendant.” Jackson, 310
Ga. at 721 (2) (a) (emphasis in original). Here, after the potential
conflict arose9 and went unaddressed by the trial court, Wyatt
informed the Court of Appeals and sought a remand to address the
issue.10 See generally Garland, 283 Ga. at 203 (noting that counsel
raised his own alleged ineffectiveness and sought removal from
representation). At the same time, while awaiting a ruling on the
8 Though such motions are nullities and must be dismissed, see White,
302 Ga. at 319-320 (2), it bears noting that trial courts are not precluded from
taking action sua sponte, once the specter of a conflict is raised, to determine
whether counsel should be replaced.
9 While the potential conflict first arose when Bryant sought to replace
his counsel during the initial motion for new trial proceedings, this potential
conflict ceased to exist when Bryant withdrew that request and affirmatively
requested that Wyatt stay on as counsel.
10 We also note that Wyatt testified at the habeas hearing that,
throughout the post-trial proceedings, he asked the Georgia Public Defender
Standards Council to replace him due to Bryant’s ineffectiveness allegations
but was unsuccessful in those efforts.
20
motion to remand, Wyatt endeavored to preserve Bryant’s claims of
error by filing Bryant’s appellate brief. Thus, the record reflects that
after the potential conflict arose, Wyatt acted appropriately to
protect Bryant’s interests until the issue could be resolved. Then,
when Haddad was ultimately appointed to replace Wyatt, the
potential conflict was eliminated, as Haddad was then free to assert
claims of ineffectiveness on the part of Wyatt. In sum, any potential
conflict created when Bryant began submitting unauthorized filings
asserting ineffectiveness never ripened into an actual conflict that
could have significantly and adversely affected the representation,
because new appellate counsel was appointed and Bryant had the
opportunity to pursue trial counsel ineffectiveness claims both at the
motion for new trial stage and on direct appeal with the assistance
of conflict-free counsel.
Because Wyatt’s representation of Bryant did not give rise to
an actual conflict of interest, it follows that Haddad’s failure to
assert this issue on appeal did not amount to ineffective assistance.
The habeas court erred in concluding otherwise.
21
(b) With regard to Bridges’ plea deal, the Court of Appeals
rejected this trial counsel ineffectiveness claim due to the lack of
evidence about the plea agreement, and alternatively because it
determined that Wyatt’s decision not to cross-examine Bridges
about her plea agreement was the product of reasonable strategy.
See Bryant, slip op. at 14 (2) (b) (“[W]e cannot say that trial counsel’s
failure to cross-examine Bridges about her plea was patently
unreasonable.”) (punctuation omitted). However, the habeas court
ruled that Haddad performed deficiently by failing to obtain the plea
hearing transcript and final disposition, which would have enabled
Haddad to question Wyatt more pointedly about his failure to cross-
examine Bridges about her plea deal. The habeas court held that by
failing to offer the transcript and final disposition into evidence at
the second motion for new trial hearing, Haddad relinquished the
opportunity to present evidence of the favorable terms of Bridges’
plea deal and her resulting motives in testifying as she did. The
habeas court thus determined that the lack of a transcript and final
disposition prevented the Court of Appeals from concluding that
22
there was prejudice in Wyatt’s failure to impeach Bridges, which
also made it impossible to establish Wyatt’s ineffectiveness.
Because Haddad’s potential ineffectiveness in this regard
depends on whether Wyatt was himself ineffective, we first examine
Wyatt’s performance on this issue. See Gramiak, 304 Ga. at 513 (I).
As noted above, the transcript from Bridges’ plea hearing reflects
that she pled guilty to aggravated assault and was sentenced to
serve two years on probation, consecutive to the three-year term of
imprisonment she was then serving on a prior offense as to which
her probation was revoked due to her arrest in this case. In addition,
Bridges’ plea was conditioned on her truthful testimony at Bryant’s
trial, for which Bridges received two years of probation instead of a
potential sentence of 25 years to life and registration as a sex
offender. See OCGA §§ 16-6-22.2 (c) (those convicted of aggravated
sexual battery “shall be punished by imprisonment for life or by a
split sentence that is a term of imprisonment for not less than 25
years and not exceeding life imprisonment, followed by probation for
life”); 42-1-12 (a) (10) (B.1) (xiv) (defining “dangerous sexual offense”
23
as including aggravated sexual battery), (e) (2) (requiring all
individuals convicted of a dangerous sexual offense to register as a
sex offender). Thus, Wyatt could have questioned Bridges about this
plea deal if he wanted to cast doubt on her motives in testifying
against Bryant.
At the second motion for new trial hearing, Wyatt testified,
upon questioning by Haddad, about why he had not cross-examined
Bridges on the plea deal:
Q: Now, you never actually asked or crossed [Bridges]
about what she pled to. I mean, that was never clear. Is
there a reason why you didn’t—I mean, it ended up being
an aggravated assault, but—
A: Yeah. I think—I actually had the plea, transferred the
plea. I was of the opinion she received quite a harsh
sentence for her part in this case, and that’s the reason I
did not bring it into the evidence, the sentence that she
received.
Q: Okay. You said that—I couldn’t hear you. You said—
A: A harsh sentence, yes.
Q: A harsh sentence? Now—
A: For—for being there, and I think she had some
probation revoked and—and got some time for it, and her
24
involvement was fairly minor, was my opinion.
Wyatt reiterated his position at the habeas hearing, testifying that,
because the only allegations against Bridges were that “she saw [the
battery],” he “decided not to beat her up on that point.” Thus, it is
clear that Wyatt’s lack of cross-examination about Bridges’ plea deal
was not an oversight on his part but rather a strategic decision. The
question is whether that decision was reasonable or, instead, was
“so patently unreasonable that no competent attorney would have
chosen it.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637)
(2013) (citation and punctuation omitted).
Under that stringent standard, we conclude that Wyatt’s
decision to forgo cross-examination about Bridges’ plea deal did not
constitute deficient performance. Based on what he viewed as the
wide disparity between Bridges’ alleged culpability and that of his
own client, Wyatt opted not to risk alienating the jury by attacking
Bridges’ motives for testifying based on her plea deal. Instead,
Wyatt attempted to impeach Bridges’ testimony in other ways, most
notably, by eliciting an acknowledgment that Bridges wrote Bryant
25
a letter after the alleged incident saying that “nothing happened.”
In addition, Wyatt attempted to create doubt about Bridges’ ability
to observe what happened by eliciting that she had used drugs on
the night in question and that the lights were off in the living room
at the time of the alleged incident. Wyatt also cast doubt on the
validity of Hudgins’ perception of what happened by eliciting that
Hudgins took several medications at night, including Xanax, a
muscle relaxant, and a sleep aid. Though Wyatt’s cross-examination
was ultimately not successful in convincing the jury to disbelieve
Bridges’ account, the fact that his strategy was unsuccessful does
not mean that it was deficient. See Crouch v. State, 305 Ga. 391,
400 (3) (825 SE2d 199) (2019) (“It is well settled that ‘hindsight has
no place in an assessment of the performance of trial counsel.’”).
In sum, we cannot say that Wyatt’s strategy in cross-
examining Bridges, viewed in its totality, was so patently
unreasonable that no competent attorney would have pursued it.
Absent a showing of deficiency, there can be no showing of
ineffectiveness by Wyatt in this regard. See Romer, 293 Ga. at 344
26
(3) (insufficient showing on one prong of ineffectiveness claim
obviates need to examine the other). And absent Wyatt’s predicate
ineffectiveness, it is impossible to establish Haddad’s
ineffectiveness. See Gramiak, 304 Ga. at 513 (I). Accordingly, the
habeas court erred in concluding that Haddad rendered ineffective
assistance in this regard.
(c) The remaining grounds on which habeas relief was granted
fall into three categories: (i) Haddad’s alleged general failure to
properly investigate and prepare for Bryant’s appeal; (ii) Haddad’s
alleged failure to raise certain claims of trial counsel ineffectiveness;
and (iii) Haddad’s alleged failure to adequately argue and support
certain claims he did raise on appeal. For the reasons discussed
below, none of these grounds was sufficiently supported by the
evidence.
(i) The habeas court ruled that Haddad generally failed to
adequately investigate and prepare for Bryant’s appeal. Citing
Haddad’s failure to seek a continuance once he became aware of the
true posture of the case at the second motion for new trial hearing,
27
the court noted that Haddad questioned Wyatt at that hearing only
on a limited range of issues and then released him, thereby closing
the record as to Wyatt’s ineffectiveness. As a result, the court held,
Haddad was unprepared to identify and pursue numerous instances
of Wyatt’s ineffectiveness and to effectively argue the claims he
raised on appeal.
Any alleged deficiencies in Haddad’s investigation or
preparedness could constitute ineffective assistance only if the
resulting failure to raise claims of trial counsel ineffectiveness or
trial error was prejudicial, i.e., only if those omitted claims would
have had a reasonable probability of success had they been raised
on appeal. See Gramiak, 304 Ga. at 513 (I). Thus, the success of
this general failure-to-investigate ground depends on the merits of
the remaining specific grounds on which relief was granted. We turn
to these grounds now.11
(ii) The habeas court ruled that Haddad should have raised
11 As already noted, even if we construed all of Bryant’s claims as
ineffective assistance of appellate counsel claims, we identify no merit to any
of the grounds on which habeas relief was granted. See footnote 6 above.
28
claims of trial counsel ineffectiveness based on Wyatt’s failure to (a)
obtain the recordings of Officer Ramey’s interviews with Hudgins
and Kilgore and physical evidence yielded by Hudgins’ sexual
assault examination; (b) cross-examine Bridges regarding various
facts that could have cast doubt on the accuracy of her testimony or
helped undercut the State’s case; and (c) object to Gentry’s testimony
about Hudgins’ “feelings and impressions.” We conclude that, in
making these rulings, the habeas court failed to give effect to the
strong presumption favoring counsel’s strategic decisions and relied
on speculation rather than evidence in the record in assessing
prejudice.
At the habeas hearing, Haddad testified that his practice on
appeal was to raise only the claims he believed were the strongest
and explained specifically why he did not challenge the failure to
instruct the jury on the lesser included offense of sexual battery, the
recidivist sentence, and the sufficiency of the evidence.
Significantly, Haddad was not questioned at the habeas hearing
about his failure to assert any particular claims of trial counsel
29
ineffectiveness. However, in testifying about his strategy, Haddad
stated specifically with regard to ineffectiveness that he decided to
“limit it to . . . two points” that he believed were “the strongest.”
These “points” focused on Wyatt’s failure to object to the
incriminating text-message testimony and Wyatt’s failure to cross-
examine Bridges about her plea deal.
“[The] process of winnowing out weaker arguments on appeal
and focusing on those more likely to prevail . . . is the hallmark of
effective appellate advocacy.” Ferrell, 274 Ga. at 404 (V) (citation
and punctuation omitted). Thus, where appellate counsel makes a
deliberate choice to raise certain issues on appeal and not others,
the case for ineffectiveness is very difficult to make. See id.Here, in light of Haddad’s testimony that he purposefully
elected to pursue the claims he believed were the strongest, Bryant
has failed to overcome the presumption of reasonableness attached
to Haddad’s strategy. In assessing the relative strength of the
ineffectiveness claims Haddad did raise versus that of the claims
identified by the habeas court, we conclude that Haddad’s choice of
30
claims was objectively reasonable. Thus, we cannot say that his
choice to focus on these issues, rather than the issues he deemed less
critical — even if the habeas court disagreed with counsel’s strategic
decision-making — constituted deficient performance. See Ferrell,
274 Ga. at 409 (V) (C) (2) (concluding that, in light of the weakness
of a particular claim, “appellate counsel did not render deficient
performance by focusing on other claims to the exclusion of th[at]
one”).
In addition, these claims fail for a lack of any showing of
prejudice. With regard to the recordings of Officer Ramey’s
interviews, to the extent such recordings even exist,12 Bryant failed
to make them part of the habeas record. Thus, whether any such
recordings may have aided Bryant’s defense is a matter of mere
speculation. See, e.g., Leanos v. State, 303 Ga. 666, 671 (2) (c) (ii)
(814 SE2d 332) (2018) (where defendant failed to offer evidence of
what an uncalled witness’s testimony would have been, there was
12 While the record reflects that the interview with Hudgins was
recorded, there is no evidence that the same was true of the interview with
Kilgore.
31
no basis for a ruling of ineffectiveness grounded on counsel’s failure
to call that witness); Heard v. State, 296 Ga. 681, 685 (3) (d) (769
SE2d 917) (2015) (same). Similarly, with regard to the evidence
from the sexual assault examination, such evidence was not
tendered at the habeas hearing, and no testimony was presented as
to why this evidence would have been helpful to Bryant. See
Hambrick v. Brannen, 289 Ga. 682, 685 (715 SE2d 89) (2011)
(“Speculation will not satisfy the prejudice prong of Strickland.”).13
As to the failure to impeach Bridges, Bryant did not make a proffer
of what Bridges’ testimony would have been on any of the subjects
of impeachment the habeas court identified, and thus there is no
substantiated basis for any determination of prejudice. See Leanos,
303 Ga. at 671 (2) (c) (ii); Heard, 296 Ga. at 685 (3) (d). Finally, as
to the failure to object to Gentry’s testimony about Hudgins’
13 Curiously, the habeas court also found that Wyatt’s failure to obtain
the recordings and physical evidence was “a potential Brady violation.” See
Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963). But even
assuming there was a Brady violation — which is unlikely, given that the
existence of the evidence in question was apparent, meaning that the evidence
was not “suppressed” — such a violation would constitute misconduct on the
part of the prosecution rather than reflect dereliction by trial counsel.
32
“feelings and impressions,” Gentry’s testimony was not prejudicial
because it was cumulative of the testimony of Hunter and Barker.
See, e.g., Clarke v. State, 308 Ga. 630, 634-636 (2), (3) (842 SE2d
863) (2020) (no prejudice where testimony to which counsel did not
object was cumulative of other evidence).
(iii) With regard to the issues that Haddad did raise on appeal,
the habeas court found that Haddad rendered ineffective assistance
in two respects: first, by failing to question Wyatt on the existence
and whereabouts of the original text messages in which Bryant
allegedly apologized to Hudgins; and second, by failing to adequately
challenge the admission of Hudgins’ hearsay statements to
witnesses Barker, Hunter, and Gentry. Because there is again no
basis for any determination of prejudice resulting from Haddad’s
handling of these issues, these determinations of ineffectiveness
cannot stand.
As to the first of these issues, Haddad did assert an
ineffectiveness claim based on Wyatt’s failure to object to the
witnesses’ testimony about the text messages. The Court of Appeals
33
rejected this claim, concluding that, pretermitting whether Wyatt
performed deficiently by failing to object on best-evidence grounds,
there had been no showing of prejudice because there was no
indication that the State would not have been able to either produce
the messages or satisfactorily account for their absence. See Bryant,
slip op. at 11-12 (2) (a). The habeas court held that Haddad’s failure
to make a record to establish such prejudice constituted ineffective
assistance.
This holding, however, assumes without evidence that Haddad
would in fact have been able to make such a record. Bryant has
presented no evidence or other indication that the original text
messages could not have been presented at trial, or their absence
sufficiently accounted for, in the event of an objection to the
testimony about them. See OCGA §§ 24-10-1002, 24-10-1004.
Indeed, the habeas court recognized that it was “speculative [as] to
what the [evidence] would show.” In the absence of any showing
that the text-message evidence would not have been ultimately
admissible, there is nothing to support a holding of trial counsel
34
ineffectiveness or appellate counsel ineffectiveness on that basis.
See Gramiak, 304 Ga. at 513 (I); Wesley v. State, 286 Ga. 355, 356
(3) (689 SE2d 280) (2010) (ineffectiveness cannot be premised on the
failure to assert a meritless claim).
As to the second of these issues, the habeas court ruled that
Wyatt failed to adequately challenge the admission of Hudgins’
hearsay statements, in that, in his pretrial motion, Wyatt relied on
obsolete case law construing the former Evidence Code and, in the
initial appellate brief, Wyatt failed to adequately enumerate the
issues. Haddad, the court held, then failed to present sufficient
argument and citation of authority on these issues on appeal,
including by failing to challenge the admission of these statements
as Confrontation Clause violations.
Neither Bryant nor the habeas court, however, has identified
how any additional argument or authority offered by Haddad on
these issues would have affected the outcome of the appeal.
Applying the correct analysis under the current Evidence Code, the
Court of Appeals ruled that Hudgins’ statements to Barker, one of
35
Hudgins’ close friends, were admissible under the residual hearsay
exception. See OCGA § 24-8-807 (hearsay exception for statements
that are “offered as evidence of a material fact” and are more
probative than other reasonably attainable evidence, so long as they
have “circumstantial guarantees of trustworthiness”). Given
Hudgins’ unavailability to testify and the evidence of her close
relationship with Barker, we agree with this ruling. See Miller v.
State, 303 Ga. 1, 5-6 (2) (810 SE2d 123) (2018) (deceased victim’s
statement to close friend was sufficiently probative and trustworthy
to be admissible under the residual exception). Contrary to the
habeas court’s suggestion, the Confrontation Clause would have had
no relevance to Barker’s testimony, insofar as Hudgins’ statements
to her close friend were not “testimonial.” See Franklin v. State, 298
Ga. 636, 640 (2) (784 SE2d 359) (2016) (Confrontation Clause applies
only to out-of-court statements that are “testimonial” in nature,
meaning that their “primary purpose was to establish evidence that
could be used in a future prosecution” (citation and punctuation
omitted)). Because Barker’s testimony was admissible, Haddad was
36
not ineffective in failing to convince the Court of Appeals otherwise.
This same analysis holds for the testimony of Hunter, Hudgins’
boyfriend. And because Hudgins’ statements to Gentry about the
incident were cumulative of her statements to Barker and Hunter,
even assuming Haddad was deficient in presenting this issue on
appeal, there is no reasonable probability that the result of the
appeal would have been different had he successfully argued that
the statements to Gentry had been improperly admitted.
For the foregoing reasons, Bryant has failed to carry his burden
to establish ineffective assistance of appellate counsel, and the
habeas court therefore erred in granting habeas relief.
Judgment reversed. All the Justices concur.
37